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District Court 12 April 2019

R v Alderson

[2019] NSWDC 500

Sexual offences
CRIMINAL SENTENCE SUBJECTIVE MATTERS NO CRIMINAL ANTECEDENTS

Citation: R v Alderson [2019] NSWDC 500
Court: District Court of New South Wales
Date: 12 April 2019
Judge: King SC DCJ

Background

The offender, a 52-year-old Sydney man with no prior criminal history, appeared for sentencing on a single charge of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). The offending occurred over two days in June 2017, when the offender used his employer's Apple iMac computer, located in an open-plan office, to access 207 files each containing between five and eight child abuse images.

The offender was detected after a colleague observed him viewing images of young children in sexualised poses and alerted the IT department, which installed screen capture software on the work computer. A search warrant executed at the employer's premises led to seizure of the computer, which was found to contain material sourced from more than 50 websites. The age range of the children depicted was three to 17 years, with an estimated 2,000 victims across the files.

The offender pleaded guilty at the Downing Centre Local Court on 20 February 2018 and had not spent any time in custody. The Crown did not allege that the offender had accessed the material for financial gain or commercial distribution.

  • What sentence was appropriate for a single offence of using a carriage service to access child pornography, given the nature and volume of the material accessed?
  • What weight should be given to the early guilty plea, genuine remorse, and the offender's subjective circumstances, including an absence of prior convictions?
  • What was the appropriate sentencing disposition, having regard to the applicable legislation and the offender's participation in psychological treatment?

Decision

The court acknowledged the serious nature of the offending, noting that child pornography is not a victimless crime. Every image represents actual abuse of a real child, and continued online distribution perpetuates that harm indefinitely. The court emphasised that both specific and general deterrence are significant sentencing considerations for this type of offence, given the ease with which such material can be accessed and the role demand plays in encouraging the production of further abuse material.

King SC DCJ found several mitigating factors relevant. The offender had no criminal antecedents, entered a guilty plea at the earliest opportunity, and was found to be genuinely remorseful and contrite. A 25% discount was applied to reflect the utilitarian value of the guilty plea and the facilitation of justice. The court also drew on extensive psychological reporting, including multiple reports from LSC Psychology and other practitioners, as well as a Sentencing Assessment Report and a Corrective Services psychological assessment.

In determining the final order, a complication arose regarding the availability of an Intensive Correction Order (ICO). The Crown drew the court's attention to a recent amendment to the Crime (Sentencing Procedure) Act 1999, specifically s 67, which excludes prescribed sexual offences from eligibility for an ICO. This offence fell within that definition. After the initial sentencing remarks had been delivered, the court revised its proposed order and, with the consent of both parties, imposed a Community Correction Order instead.

Orders Made

  • Community Correction Order of 18 months, subject to compliance with any directions from Community Corrections regarding participation in counselling and/or treatment relevant to the offence, including as assessed participation in the LSC program.
  • Destruction of two USB drives in the possession of NSW Police consented to by both parties (no formal order considered necessary by the court).

Key Takeaways

  • Accessing child pornography online is not treated as a victimless offence. The District Court reiterated that every image represents ongoing harm to real children, and that consumer demand contributes to the production of further abuse material.
  • A 25% sentencing discount applied where an offender pleaded guilty at the earliest opportunity, even where the Crown case was strong, reflecting the utilitarian value of the plea and the facilitation of justice.
  • Prescribed sexual offences under s 67 of the Crime (Sentencing Procedure) Act 1999 are excluded from eligibility for an Intensive Correction Order, a point that arose post-sentence and resulted in the court substituting a Community Correction Order.
  • Genuine remorse, an absence of prior convictions, and engagement with psychological treatment were accepted as relevant mitigating factors, even in the context of a serious Commonwealth offence carrying a maximum penalty of 15 years' imprisonment.
  • The volume and variety of material accessed, the deliberate navigation to websites with titles indicating child pornography, and the estimated 2,000 child victims depicted were all identified as relevant to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 67

Cases:
No cases were cited in the judgment text provided.